Neutral Citation Number: [2009] EWHC 170 (Admin)

CO/9914/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 23rd January 2009
 
B e f o r e:

LORD JUSTICE MAURICE KAY 
MR JUSTICE SIMON 
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Between: 
GARY MCKINNON 
Claimant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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Edward Fitzgerald QC and Ben Cooper (instructed by Kaim Todner) appeared on behalf of the Claimant
Hugo Keith (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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J U D G M E N T
1.	LORD JUSTICE MAURICE KAY:  This renewed application for permission to apply for judicial review arises in an extradition case.  The extradition request from the United States of America fell to be processed by reference to Part 2 of the Extradition Act 2003.  The statutory appeal procedure has run its course.  The District Judge has sent the case to the Secretary of State pursuant to section 92, the Secretary of State has ordered extradition pursuant to section 93, this court dismissed the claimant's statutory appeal (see [2007] EWHC 762 (Admin)) and the House of Lords dismissed his further appeal on 30th July 2008 (see [2008] UKHL 59).  The factual background is set out in those cases and, this being a permission application, we do not propose to rehearse it in this judgment.  Within 4 weeks after the decision of the House of Lords, the claimant was diagnosed as suffering from Asperger's syndrome, to which we shall refer as AS.  Until then it had not been suspected.  It seems that late diagnosis is not uncommon.  That, along with other material, became the subject of further representations, on behalf of the claimant, to the Secretary of State.  She considered them in detail but by a decision letter of 13th October 2008, she rejected those representations and indicated her intention to proceed to extradition.  That prompted the present application for permission to apply for judicial review of the Secretary of State's decision.  The proposed grounds of challenge will be apparent from what follows.
2.	On behalf of the claimant, the first submission of Mr Fitzgerald QC is that there is a manifest legal error on the face of the Secretary of State's decision letter.  He refers to paragraph 6 of it, which is in these terms:
"The Secretary of State accepts that, in principle, a supervening event, arising after the conclusion of appellant proceedings, may... potentially engage a Convention right.  Only in these 'very limited' circumstances is the Secretary of State, as a public body for the purposes of section 6 of the Human Rights Act 1998, required to consider whether extradition is incompatible with the Convention... The Secretary of State does not accept the contention (in your representations dated 8th September 2008) that she has, as you appear to describe it, a 'residual' discretion in relation to 'health'."
3.	Mr Fitzgerald submits that there is, even at this stage, a residual discretion in relation to the claimant's health and the effect of extradition upon it, over and above any protection afforded by Convention rights.  We are entirely satisfied that this is not correct, even on an arguable basis.  It is clear from the structure and the detailed provisions of Part 2 of the 2003 Act that, whilst physical and mental conditions rendering extradition unjust or oppressive are matters for due consideration in the statutory appeal process (section 91), once the appropriate judge sends the case to the Secretary of State for her decision as to whether a person is to be extradited, the Secretary of State must order extradition unless she is prohibited from so doing by one of the matters specified in section 93(2) or one of the matters referred to in section 93(4) is in play.  It is plain that none of the matters specified or referred to in those provisions arises in this case.  Whatever the position may have been under earlier legislation, the 2003 Act does not preserve or create a residual discretion.  Indeed, by the language of section 93, it is inconsistent with one.  This is because the policy of the Act is to put an end to serial applications seeking to raise issues which have already been, or should have been, raised in the proceedings.  On the other hand, as the 2003 Act does not remove the obligation of the Secretary of State, as a public authority, to respect the Convention rights of the individual, exceptionally she is duty‑bound to consider fresh evidence in limited circumstances such as those described in McKinnon 1 at paragraph 63.  We shall refer to the fresh evidence about AS shortly.
4.	The second proposed challenge to the latest decision of the Secretary of State is that she did not do justice to the representation that, if convicted, the claimant faces a real risk of imprisonment in the so‑called supermax federal prison at Florence, Colorado.  The case for the claimant on this is that (1) there is a real risk that he would be detained at Florence, in which he event (2) he would be subjected to conditions which would infringe his Convention rights.  The second stage only arises if the first is established.  As to that, the claimant relies on the statement of Thomas Loflin III, dated 27th August 2008 and a letter from Human Rights Watch dated 27th August 2008.  The former quantifies the likelihood of the claimant being detained in Florence as "a virtual certainty".  The first paragraph of the latter states:
"It is my further understanding that one of the issues presented by this application is Mr. McKinnon's incarceration at the United States Penitentiary, Administrative Maximum, located in Florence, Colorado...  In view of the seriousness of the offenses alleged by the US and emphasized by the House of Lords and High Court in London there is a real and substantial risk that Mr McKinnon if extradited to the United States and ultimately convicted will be detained in a supermax high security prison such as ADX."
5.	In her decision letter, the Secretary of State said at paragraph 38:
"Neither the Human Rights Watch material nor the evidence from Professor Rovner [which went to the conditions in Florence rather than the likelihood of incarceration there] addresses whether there is a real risk that Mr. McKinnon would be sent to ADX Florence, the conditions that he would be likely to encounter were he to be transferred there, or the length of time that he would remain there."
She later added at paragraph 44:
"Nor does the Secretary of State consider that Mr. Loflin's evidence demonstrates that Mr. McKinnon is at a real risk of being sent to ADX Florence."
Then at paragraph 48:
"... Mr Loflin's evidence, which is generalised in nature, does not provide a basis upon which the Secretary of State could conclude that Mr. McKinnon is at real risk of being detained at ADX Florence."
6.	Mr Fitzgerald submits that the Secretary of State misdirected herself in relation to the Human Rights Watch letter because it did in terms address the real risk of detention at Florence.  We are not persuaded that this can properly or arguably be described as a misdirection.  The Human Rights Watch letter is quite lengthy.  It addresses prison conditions in some detail.  The only reference to the likelihood of the claimant being sent to Florence is in the introductory paragraph, where its appearance is entirely consistent with its being an assumption upon which the rest of the letter is based.  It is certainly not a reasoned statement.
7.	The latest statement by Mr Loflin was carefully considered by the Secretary of State over several paragraphs in her letter.  She refers to the fact that Mr Loflin's opinion purports to be supported by reference to other specified persons who have been detained in Florence.  The Secretary of State concluded that the specified persons were very different from Mr McKinnon, they being persons who stood convicted, either of homicide committed in the course of terrorist acts or, in one case, of a grave offence of espionage, the person in question being a high‑level Russian spy.
8.	We share the conclusion of the Secretary of State on this issue.  Moreover, we consider it pertinent that Mr Loflin's evidence appears to have undergone significant mutation in the course of the history of this matter.  His original statement, made in advance of the extradition proceedings, said at an early stage:
"McKinnon will likely be in county jails with no bail pending trial, in a super max or maximum security federal prison upon conviction." 
Later in the same document, Mr Loflin stated that the claimant: 
"... will be assigned to a prison at the discretion of the Federal Bureau of Prisons, which will take into account whether he has a prior record of imprisonment; whether he has been convicted of a crime of violence; whether he is an escape risk; the length of his sentence; and whether he needs to be subjected to SAMs."
SAMs are special administrative measures and it is common ground that that is no longer an issue in this case.  Mr Loflin then "predicted" that the claimant, if convicted, would be sentenced to either supermax incarceration "or ‑‑ at best ‑‑ medium security federal prison".  In other words, in that first statement there is nothing approaching a certainty as to where the incarceration would occur.  In the further statement, made in August 2008, Mr Loflin returned to the subject and, on this occasion, quantified the prospect of the claimant being incarcerated at Florence as "a virtual certainty".  His reasoning is closely related to the specified other persons, to whom we have already referred.  It seems to us that the Secretary of State, on any basis, was entitled to take the view that she did of Mr Loflin's evidence. 
9.	We do not consider that it is arguable that the claimant could satisfy the stringent test which has to be satisfied for successful reliance on Article 3, so far as the issue of supermax incarceration is concerned.  As to that test, in Ullah v Special Adjudicator [2004] 2 AC 323 it was said:
"... it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment..." 
10.	Moreover, there is a further and in some ways more fundamental reason why the claimant cannot succeed on this issue.  The fact is that, whatever is now said about Florence, this is not really susceptible to characterisation as "fresh evidence" or a "supervening matter".  The issue was addressed by the District Judge at the extradition hearing.  He concluded: 
"There is no basis for concluding that the defendant will go to a supermaximum security prison or that wherever he is held he will be abused."
11.	The finding that there was no basis to conclude that the claimant will go to a supermaximum security prison was not challenged in McKinnon 1.  It is plain to see how this issue has re‑emerged since the claimant's unsuccessful appeal to the House of Lords.  By then it had been successfully deployed on behalf of Abu Hamza, in a Rule 39 application in Strasbourg.  We add in passing that this claimant was unsuccessful in his Rule 39 application in Strasbourg, following the dismissal of his appeal by the House of Lords.  The point, for present purposes, is that the underlying material relating to the likelihood of incarceration at Florence, and the conditions there, has been available from the outset in this case.  We do not consider that it can be fitted into the exceptional type of supervening matter envisaged in McKinnon 1.  In summary, we do not find an arguable ground for judicial review on this issue.
12.	We now return to AS.  Although it is not a "supervening" condition, it is the subject of a supervening diagnosis and it is not the fault of the claimant that it was not diagnosed earlier.  The medical evidence is to be found in the reports of Dr Berney and Professor Baron‑Cohen.  The diagnosis is unequivocal.  Dr Berney states at paragraph 4.3 of his report: 
"The presence of [AS] leaves Mr. McKinnon vulnerable to the stress of social complexity as well as...  If he finds himself in circumstances where he is unable to withdraw from complex environments into something more autism‑friendly, he is likely to develop a pathological anxiety state and, given the presence of the developmental disorder, he will be prone to develop an acute, psychotic disorder..."
In an addendum, Dr Berney stated:
"3. I would be concerned therefore about the degree of stress that would be inherent in imprisonment with its encounters with other people...  These others, particularly fellow‑prisoners, are unlikely to have much sympathy with Mr. McKinnon's innate difficulties.  This experience would be difficult enough if in an English culture but, were it to occur in another culture (such as American), this would present a further layer of demand and, therefore, a higher level of stress."
He added:
"4... the presence of the developmental disorder means that he is more likely to be destabilised than most, taking him into a psychiatric state that may range from pathological anxiety through to psychosis, a shift that will produce a long‑standing deterioration in his mental health."
Dr Berney is a consultant developmental psychiatrist.  Professor Baron‑Cohen is a consultant clinical psychologist, as well as holding his academic and research position.  In the course of his report, some of which appears to trespass into areas beyond his expertise, there is this potentially significant passage:
"It is my view that there is a high risk of serious deterioration of Mr McKinnon's mental health if he were to be incarcerated in the USA pre‑trial or post conviction.  It is also important to bear in mind that if separated from his parents and partner and put into the traumatic environment of prison, there is a risk that he would attempt to take his own life."
13.	The Secretary of State dealt with this material in her decision letter.  Amongst other things, she said the following:
"28...  The Secretary of State is therefore unclear as to why it is said that proceedings in the United States are said to be of such a different order of magnitude in terms of their effect as to be likely to lead to a significant deterioration in his mental health.
...
30... even on the basis that Mr. McKinnon is likely to be detained in custody, he is to be extradited to a country with a highly developed awareness of psychiatric illness and which has procedures for ensuring that those in custody receive appropriate care.  Therefore, although the Secretary of State accepts that extradition to the United States will cause Mr. McKinnon certain stress and may exacerbate any illness from which he currently suffers, she does not accept that his condition cannot be appropriately treated.
31.  The Secretary of State does not accept that the fact that an individual may become even severely depressed upon imprisonment in a foreign state can effectively preclude that individual's extradition, where such an illness would be treated and monitored.  There is no suggestion, for example, that Mr. McKinnon is not fit to stand trail such that it would make it unjust to surrender him to the United States and the Secretary of State notes that the European Court of Human Rights declined his application for Rule 39 relief notwithstanding his medical condition."
14.	The point that Mr Fitzgerald seeks to make is that the Secretary of State (1) ought not without more to have rejected Professor Baron‑Cohen's opinion of "a high risk of serious deterioration of Mr McKinnon's mental health if he were to be incarcerated in the USA pre‑trial or post conviction" and an associated suicide risk; (2) downplayed the seriousness of the potential deterioration which may extend to psychosis; and (3) concentrated instead, and inappropriately, on present fitness to stand trial and a comparison with the effect of the extradition proceedings on him, whilst at the same time disregarding the difference in relation to a person with Mr McKinnon's condition being incarcerated in the United States rather than in this country.  Mr Keith, on behalf of the Secretary of State, responds, amongst other submissions, by referring to the stringency of the Article 3 test.  He submits that the reasoning of the Secretary of State is unassailable.  He may be right.  However, in our judgment, this part of the claimant's case merits substantive consideration after full argument and we would grant permission by reference to it.  It is not necessary or desirable for us to say anything more about that.
15.	Indirectly, this brings us to the fact that, at the moment, the Director of Public Prosecutions is actively considering whether to prosecute the claimant in this country.  In 2002 and 2003 the Director, or one of his predecessors, decided to defer to the American prosecution.  The decision was properly explained in a letter of 26th November 2003.  Since the claimant met with failure in the House of Lords last July and in his Rule 39 application in Strasbourg in August, he has made an open offer to plead guilty here to an offence under the Computer Misuse Act and, more recently, he has a admitted guilt in a formal witness statement.  The Director has stated that he is considering a prosecution and that he will make a decision by mid‑February.  At the outset of the hearing before us the Secretary of State, through Mr Keith, very properly stated that she would not extradite the claimant before that decision.  We were invited by Mr Fitzgerald to adjourn the present application to await that event but we refused to do so, taking the view that the interests of justice did not require such a course.  We noted that if the Director decides to prosecute, the Secretary of State would not extradite before the conclusion of the domestic proceedings, having regard to the spirit, if not the letter, of section 97.  The decision to prosecute is exclusively one for the Director and not in any way for the Secretary of State.  We regard as fanciful the suggestion that, in the circumstances of this case, the claimant might successfully challenge a decision not to prosecute him by way of an application for judicial review.  We are also mindful of the very limited basis of the present offer to plead guilty when set against the American charges.  Nevertheless, many of Mr Fitzgerald's submissions lead back to the availability or preferability of prosecution here.  We have found it appropriate to grant permission on the basis we have described without regard to this hypothesis.  By the time of the substantive hearing, the Director can be expected to have reached and notified his decision.  If he declines to prosecute, section 97 will not impact.  Conversely, if he decides to prosecute the envisaged substantive hearing of the present application will be or may become premature.
16.	Finally, we should mention some other matters.  In addition to his reliance on Article 3, Mr Fitzgerald also seeks to advance an Article 8 case.  We accept that, in some circumstances, an Article 8 breach may be established where an Article 3 breach cannot be.  We agree with Mr Keith that this is not such a case.  If the claimant fails on Article 3, we do not consider that he might still succeed on Article 8.  Accordingly, we would further limit the already limited permission to Article 3.  However, we would not prevent Mr Fitzgerald from raising points about pre‑trial bail and post‑sentence repatriation, but only to the extent that they relate to the diagnosis of AS.  In other respects, they were considered and disposed of in McKinnon 1.  As regards the substantive hearing, we would order expedition and direct that it be listed on the first available date in March with an estimate of 1.5 days (unless counsel jointly consider that to be significantly too long or too short).  If the Secretary of State wishes to file evidence, she must do (save on the issue of prosecution in this country) by 20th February.  Any evidence in reply to that must be filed by 27th February.
17.	So there we stand.  Limited permission and expedition.
18.	MR KEITH:  I am very grateful for the directions.  The only aspect on which I would be grateful if my Lords would hear me is whether or not, if the decision of the Director was perhaps made, as is indicated, mid‑February, and the claimant wishes, despite my Lord's observations on the prospects of successful judicial review of the Director's decision, whether he then judicial reviews in any event.  There may be something to be said for hearing any judicial review of that decision together with the substantive hearing in this case.  I have no observations with respect to any other of my Lord's orders, but may I simply invite you to vary that order relating to the hearing of this matter on the first available date in March, vary that to not before the end of March, which would allow both matters, if expedited, to be listed together.
19.	LORD JUSTICE MAURICE KAY:  So you are seeking a longer period? 
20.	MR KEITH:  Only a month longer, but that would allow the claim form to be issued, if there is a judicial review of the Director.  My Lord, with respect, consistent with the submissions that I made before my Lords over the week, we certainly do not encourage that.  
21.	LORD JUSTICE MAURICE KAY:  No, it would be wrong for us to mention any such putative application in our order.
22.	MR KEITH:  Quite so.
23.	LORD JUSTICE MAURICE KAY:  It would be undesirable if a fixture was obtained in March and then there was an application to break it on the basis that there is another matter pending. 
24.	MR KEITH:  Indeed, and because of the manner in which there is a certain connection, although not a connection for which the claimant argued, there may be some benefit to a Divisional Court hearing, if such an allocation is made.
25.	LORD JUSTICE MAURICE KAY:  If we miss March, Easter is early in April and things begin to drag.
26.	MR FITZGERALD:  They do.
27.	LORD JUSTICE MAURICE KAY:  I think term ends on something like 7th or 8th April.
28.	MR KEITH:  Could I ask my Lords to vary it to be listed not before 28 days after the decision of the Director.  If the decision comes sooner, then any judicial review will come sooner.  If it is later, it will be later.
29.	LORD JUSTICE MAURICE KAY:  In a case of this sort, no doubt everybody wants to retain the services of counsel thus far instructed, and I would have thought that it is in everybody's interests if there is some sort of fixture arranged through the normal channels within the next week or so.
30.	MR KEITH:  Then, my Lord, may I change tack and invite you to vary it to the second week of March, rather the beginning of March.  That will allow more flexibility.
31.	LORD JUSTICE MAURICE KAY:  Yes.
32.	MR KEITH:  The other related matter is whether we can retain the services of this division of this court.  Is it in my Lord's mind to have the matter listed before the same constitution? 
33.	LORD JUSTICE MAURICE KAY:  No, I do not think that order can be made.  I am not due to sit in the Divisional Court again this term, although I am early next term, and I do not think my Lord is either.
34.	MR KEITH:  So be it.  
35.	LORD JUSTICE MAURICE KAY:  You never know, Goldring LJ might be available.  He knows a little about this case from a previous hearing.
36.	MR KEITH:  Indeed.
37.	LORD JUSTICE MAURICE KAY:  Mr Cooper, what do you say about 	time? 
38.	MR COOPER:  First, my Lord, can I ask that the transcript of your Lordship's judgment be expedited.  
39.	LORD JUSTICE MAURICE KAY:  Yes.
40.	MR COOPER:  I am grateful and I am most grateful for the decision to grant permission today.  So far as the DPP joining this action is concerned, in my submission it would be wrong to seek to hurry the decision of the DPP, given that he has indicated that he is giving the matter ‑‑ 
41.	LORD JUSTICE MAURICE KAY:  Nobody is hurrying him.  We are simply taking at face value what he has said. 
42.	MR COOPER:  I have no objection to the decision of the DPP being heard at the same time as the present matter before the court in principle.  That is my position, but I ‑‑
43.	LORD JUSTICE MAURICE KAY:  Are you able to tell us this, if the DPP decided not to prosecute, is it your present intention to seek a judicial review of that decision?
44.	MR COOPER:  It would be wrong for me to prejudge the way the decision goes or the nature of the decision and its reasons.  I prefer not to say anything further about it before it is reached.  
45.	LORD JUSTICE MAURICE KAY:  Are you publicly funded?
46.	MR COOPER:  Indeed, yes.  My Lord, for that reason ‑‑
47.	LORD JUSTICE MAURICE KAY:  I think, in view of what you have both said, we ought not to limit ourselves to the first available date in March and we ought to stretch it a little, but I do not think we want to stretch it very much.  
48.	MR COOPER:  Can I add one further point, it may well be that the DPP and the senior member of the CPS department dealing with the matter would feel obliged to discuss the evidence and the development in the case with their US counterparts.  That process sometimes takes time and it is for that reason, in addition to the importance of the evidence under consideration, that I would ask that no pressure is brought to bear on what is a delicate and important decision which is currently being taken at present.  For that reason I would simply ask that the matter, as envisaged by the court earlier on, is listed after the decision is reached, as opposed to setting a date, which would force a decision within a specified period.
49.	LORD JUSTICE MAURICE KAY:  We are going to say first available date after 16th March. 
50.	MR KEITH:  May I raise one other issue? 
51.	LORD JUSTICE MAURICE KAY:  Yes.
52.	MR KEITH:  My Lords have seen from the papers that an acknowledgment of service was received from the National Autistic Society which may have some bearing on the substantive hearing.  If assists my learned friend, may I make the position of the Secretary of State plain on this issue ‑‑ it was not a matter that was argued before my Lords ‑‑ the section D in their acknowledgment of service asks the court to take notice of the diagnosis of Asperger's and invites the court to have regard to the material served by the National Autistic Society and then invites it to consider ordering the Secretary of State to pay their costs.  We certainly did not serve the National Autistic Society with the claim form.  That was something that the claimant did rather belatedly.  Indeed, some months after the judicial review application was served.  We have no objection to the court considering their material, which may or may not be helpful to the court in due course, but if there were to be any consideration of granting their other orders, for example, the one in which they seek costs from Secretary of State, we would obviously resist that in due course.
53.	LORD JUSTICE MAURICE KAY:  They are not, at the moment, parties, are they? 
54.	MR KEITH:  They have been served, so they need permission from the court to make orally submissions, but they do not seek that; they simply invite the court to have regard to the material that they have served.
55.	LORD JUSTICE MAURICE KAY:  They are not here today, so, subject to any subsequent any application made by them, as of now we cannot see any possible basis upon which the Secretary of State should have to bear their costs. 
56.	MR KEITH:  Thank you very much.
57.	LORD JUSTICE MAURICE KAY:  Anything else?
58.	MR COOPER:  My Lord, no.
59.	LORD JUSTICE MAURICE KAY:  Thank you both very much.